Authored By: Tieba Ibrahim
MIDDLESEX UNIVERSITY
Case Name: [R v Brown]
Court: [House of Lords]
Date: December 1993
Citation: [R v Brown and other appellants] 1993 2 All ER 75
Introduction
The case of R v Brown [1994] 2 All ER 75 HL is a landmark case that set the precedent in the criminal sector for laws surrounding consent and its limitations in the United Kingdom. This case was decided by a panels of four Supreme Court Judges on December 2 1992 and brought upon mixed decisions with the verdict of 3:2. R v Brown explains the role consent plays when dealing with sexual acts and how it may not be enough to avoid prosecution. The topic of consent and public interest both play a role in the ruling as preventing harm is the key principle in the criminal law sector. This ruling continues to show its importance as it is widely used and referred to both academically and in the justice system as a strong precedent.
Background
The House of Lords tried all 5 individuals Anthony Joseph Brown, Colin Laskey, Roland Leonard Jaggard, Saxon Lucas and Christopher Robert Carter together during the appeal process under the Criminal Division of the court appeal against the decision of their convictions and sentenced for assault under section 47 and 20 of the Offences Against the persons Act 1861 (OAPA). Criminal law cases in the UK typically are tried at the magistrate’s court first which consists of a panel of magistrates or district judge, more serious cases a are seen directly at the crown court where a judge and a jury in some cases decide the verdict. The appellants in this case got tried in the crown court and were found guilty which led them to appeal to the court of appeal. This guilty verdict and sentencing was also affirmed by the court of appeal which resulted in the decision being referred to the House of Lords. Here the decision by the House of Lords was also affirmed in a 3:2 decision by Lords Templeman, Lord Jauncey of Tullichettle, Lord Lowry, Lord Mustill and Lord Slynn of Hadley,
Facts of the Case
The case involves a group of adult men who were partaking in a consensual type of sexual gratification called Sadomasochistism. Sadomasichism is described as inflicting pain on another for the purposes of sexual gratification. These sexual acts revolve around physical marking and beatings, genital torture, and other sorts of violent sexual practices in which they filmed. The partners nor the victims received any nonconsensual or permanent harm during the 10 year duration of these acts nor did any of them complain to local authorities. These sexual acts took place in private with different locations and most times within the homes of three of the appellants. The tapes were discovered on accident in relation to another case and were then ceased with the appellants all being charged with assault causing bodily harm under section 47 of the Offences Against the Person Act 1861 with unlawful wounding contrary to section 20. The legal issues outlined is whether assault causing bodily harm can take place if consent has taken place and done in private.
Legal Issues
The two key legal issues at hand is whether a person is carrying out sadomasochistic acts in private with consent can be held liable for assault occasioning bodily harm under the OAPA 1861 s47. The second issue is whether a person can be found guilty of s20 of the OAPA even if consent was received and if consent is a defence for for unlawful wounding under sadomasochistic acts if carried out in private. The offences against the person act 1861 (OAPA 1861) is an important piece of legislation in regards to the UK Criminal Law System and typically deals with non fatal offences involving physical harm. Section 47 under this Act refers to Assault occasioning Bodily Harm (ABH) and covers offences like assault and battery that case actual bodily harm to the victim and must be committed either intentionally or recklessly. Section 20 under this Act refers to Malicious wounding or Inflicting Grievous Bodily Harm (GBH) which requires bodily harm to take place with a wound breaking both layers of the skin to be present. Types of wounding that can be classified as grievous are as follows; broken bones, serious cuts, or any recognised psychiatric harm. Concerns of privacy and public policy are also prevalent issues as appellants argue their sexual acts were done in a private setting with no outside witnesses nor were they selling the tapes for commercial purposes therefore their privacy should be respected. Critiques about the discrimination and lack of protection for homosexual individuals was an argument made to represent the lack of empathy and understanding that the community and legal system had for homosexuals.
